tim's experiment

It is difficult to keep up with the law these days. This is partly due to the occasional attempts to help by Mr Ronnie Tong SC, whose interventions often leave me confused.

For instance, there was his advice about the forthcoming effort to ban performance, writing, or indeed any sort of intercourse with the song which is Not Hong Kong’s National Anthem. Mr Tong thought it would still be OK if you sang the song in the bath.

I presume this was based on the theory that it would be all right if nobody could hear you. This seems to open up the possibility of a whole new legal genre of Zen jurisprudence, involving saffron robes, fishhead drums and the sound of one hand clapping. Sample question from the first Bar exam: if a man goes deep into the forest, where noone can hear him, and plays the March of the Volunteers … badly … on the kazoo, has an offence been committed?

More seriously, the solo in the bathroom suggestion sounds a bit dangerous. What if you are overheard and reported by a neighbour … or, as national security education marches through the local school system, your kid?

Nobody seems to be able to answer the obvious question about the government’s bid for an injunction against subversive sing-alongs: if the song is illegal, what need of an injunction? If it is not illegal, how can it be acceptable to ask a judge to make it so?

Another legal tangle surrounds the June 4 Celebratory Police Swoop on various individuals who were found in Wanchai or Causeway Bay wearing clothes, or carrying items, which suggested a desire to commemorate a historic non-happening.

It is apparently officially agreed that 23 people were “taken away” to police stations. None of them was in fact charged with anything. The police explanation was not helpful: they removed “those persons who were likely to cause a breach of the peace, from the scenes to police stations for enquiry.”

This conflates and confuses two different scenarios. Lawyers seem to agree that the police may legitimately remove people from the scene if their presence is giving rise to an imminent danger of large-scale disorder. A recent precedent, for example, involved a case where the court accepted that the hostile crowd heavily outnumbered the police presence. But if that was the reason here, why the need for enquiry?

Conversely, if the police suspected some crime was imminent, there might be a need for enquiry, but where was the evidence of that? In 2012 the High Court held that a breach of the peace must involve threats of or actual violence. A lady carrying a flower hardly seems to meet that requirement.

In a police letter to the Hong Kong Journalists Association, which complained because a reporter was among those “taken away”, the police line had changed a bit: officers were conducting “stop and search crime prevention work”, in a “high-risk area” where crimes such as disrupting public order and sedition had recently occurred.

The problem with this explanation is that “stop and search crime prevention work” does not usually involve a visit to a police station. My students often reported on their experience of “stop and search” incidents, which came in two categories: searches of the bags or backpacks of male students, or more genial chats with pretty females, often concluding with a polite request for a phone number. Nobody was ever invited to a police station.

Mr Tong’s take on all this was that “legally, if [the police] want to arrest a person they must have reasonable suspicion. The question is whether the police were arresting that person at that time. If they were inviting [the individual] to provide information at a police station and the person being taken away agreed to it, that would not be problematic.”

Mr Tong then prudently declined to go further in the absence of any detailed information. We are left with an interesting question. What is it about Hong Kong police stations that so many dissident politicians and eager commemorators were willing to drop their plans for the day to slot in a visit?

I have occasionally been invited to visit police stations, for press purposes or a drink or both. It was a pleasant experience. On the other hand you have to suspect that at least some of the 23 people were persuaded to agree by a threat of some kind, or indeed were simply bundled into a police vehicle without ceremony.

Not to worry. Mr Tong concluded comfortably that there were “many ways for individuals to complain about dissatisfactory police work”. You what? Was this a joke? The way for individuals to complain about dissatisfactory police work is to contact the Complaints Against Police Office, which is … part of the police force. The only alternative is to sue the Commissioner of Police, which is too expensive for most of us.

The CAPO system has been working for many years and has established a very clear track record. The Secretary for Justice recently noted that the 100 per cent success rate in achieving convictions for national security offences was evidence of the excellence and care of prosecutors. Well … other explanations are possible.

The system for dealing with complaints against police has a similarly stellar record: more than 99 per cent of cases filed end in a finding of “unpursuable”, “unsubstantiated”, or too trivial to attract any remedial action. Citizens afflicted by dissatisfactory police work have low expectations.

All this legal confusion is, I fear, the inevitable result of the police effectively taking over the government. It now looks like the man with a hammer to whom every problem looks like a nail. The cure for every social problem is a new law or higher penalties for infringing existing ones.

Ban that song, censor that film, criminalise failure to report abuse. Are people feeding pigeons? There should be a law against it. There will be. Drafting is already in progress.